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External link to Hitzig V. Canada decision at CANLII

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Medical pot advocates won a landmark decision last week when Justice Sidney N. Lederman of Ontario's Superior Court ordered the feds to fix a medical marijuana regime he declared unconstitutional. The following is an excerpt from his 40-page ruling.

the respondent in this case (the government) argued that the several hundred kilograms of marijuana that have been harvested by Prairie Plan Systems to date are intended for research purposes only. Minister (Allan) Rock, however, is quoted as stating in Health Canada's December 21, 2000 "News Release" that: "This marijuana will be made available... to authorized Canadians using it for medical purposes."

Although Health Canada's description of "How the Regulations Work" assures holders of permits that they can obtain their medicinal marijuana by growing it themselves, having a designated person grow it for them, or possibly acquiring it from a licenced supplier in the future, the reality is somewhat different.

In order to grow or obtain marijuana, licenced users and growers ultimately have no choice but to turn to the black market to get seeds, plants or dried marijuana.

While the Marijuana Medical Access Regulations (MMAR) permit the Minister to import and possess marijuana seed "for the purpose of selling, providing, transporting, sending or delivering" it to licenced dealers or the holders of a licence to produce, the Minister... has not exercised her discretion in this respect.

The result is something of an "absurdity," as Madame Justice Acton noted. This sad state of affairs is at odds with both drug control and compassionate access objectives underlying the MMAR.

The applicants assert that the MMAR throws up so many barriers to gaining access to marijuana for medicinal use that this medicine effectively remains unavailable to many seriously ill people.

The Controlled Drugs and Substances Act (CDSA) and the MMAR exempting regime (also) exposes them to imprisonment..., deprives them of their Charter right to make medicinal decisions of fundamental personal importance, and infringes their right to make autonomous decisions with respect to their bodily integrity.

The argument is also made that the MMAR establishes an illusory exemption regime. Not only do many seriously ill Canadians still face the risk of prosecution for their therapeutic use of cannabis, (but) even those who gain authorizations to possess marijuana under the MMAR are denied access to a legal supply of that medicine.

In the case at bar, all of the applicants, save Mr. Hitzig, wish to use marijuana to treat illnesses with varying degrees or seriousness. Most of them have tried traditional treatments and found them to be unsuccessful or less successful than cannabis. Due to the inability of some of the applicants to obtain permits under the MMAR, they still face the prospect of imprisonment for drug offences under the CDSA.

The respondent, however, argues that the applicants without authorizations to possess... simply have not tried to apply for permits or have been unsuccessful in obtaining the requisite medical support because they have not demonstrated a real, serious medical need to use marijuana.

I am wary of this argument.

Governments cannot insulate their laws from constitutional scrutiny by claiming that individuals have not "engaged" a regulatory regime when it is regulations themselves which limit how those individuals exercise their rights.

Under the MMAR, for instance, the Minister has delegated deciding whether an applicant has bona fide medical need to use marijuana to physicians. The medical profession has expressed serious reservations about the gatekeeping role.

Physicians can also be reported for contravening professional conduct rules. In this respect, supporting marijuana use may place doctors in conflict with provisions relating to the use of unapproved or "alternative" medicines.

Laws which put seriously ill, vulnerable people in a position where they have to deal with the criminal underworld to obtain medicine they have been authorized to take violate the constitutional right to security of the person. They (also) have to deal with the uncertain quality of the product they are getting on the street.

I have reservations about a regime which is supposed to grant legal access to marijuana while controlling its illicit use, but instead grants legal access by relying on drug dealers to supply and distribute the required medicine.

To my mind, this aspect of the scheme offends the basic tenets of our legal system. It is inconsistent with the principles of fundamental justice to deny a legal source of marijuana to people who've been granted permits and licences to produce. Quite simply, it does not lie in the government's mouth to ask people to consort with criminals to access their constitutional rights.

Other applicants are unable to grow because of... the state of their health. Ms. Stultz-Giffen, for instance, has multiple sclerosis. She is too ill and weak to cultivate her cannabis.

Mr. Hitzig's testimony in relation to the home invasions and assaults he has suffered while growing marijuana also speaks to the fears most law-abiding individuals would have in involving themselves with marijuana production (legal or not).

Regarding public health, I find it hard to see this goal being served when seriously ill individuals are forced to rely on black-market drug dealers to supply themselves with dried marijuana and seeds.

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